6.  The applicant was born in 1942 and lives in Achkhoy-Martan, Chechnya.
7.  The applicant was married to Mr Alaudin Ayubovich Gandaloyev, born in 1938. They had two sons, Emir and Muslim Gandaloyev. Alaudin Gandaloyev worked as a forester in the Achkhoy-Martan district and had never been suspected of participation in illegal armed groups.
8.  In the morning of 17 September 2003 Emir Gandaloyev drove his father to the forest in his GAZ-2401 (Volga) car. At about 9.30 a.m. they arrived at their destination point near the village of Yandi (formerly called Orekhovo), in the Achkhoy-Martan district of Chechnya. There they met Alaudin Gandaloyev’s colleague, Mr Viskha Badayev. The foresters had been working in this part of the forest assigning directions for lorries carrying firewood since the beginning of September 2003.
9.  At about 9.45 a.m. three armed men wearing camouflage uniforms came out from the woods and, in unaccented Russian, ordered the Gandaloyevs and Viskha Badayev to produce their identity papers. Emir Gandaloyev reached for his wallet that he had left in the car and heard a machine-gun burst. Then he felt a gun barrel pressed against his neck. One of the armed men ordered him in Russian to prostrate himself. After that Emir Gandaloyev heard another machine-gun burst and four or five single gunshots. He looked under the car and saw his father’s arm prostrated. He concluded that Alaudin Gandaloyev and Viskha Badayev had also been forced to the ground.
10.  At that moment Emir Gandaloyev heard one of the armed men telling the others: “This is the driver”. The men threw the papers on the ground and left in silence. Emir Gandaloyev rose and saw his father and Viskha Badayev lying on the ground. The two foresters were covered with blood, their identity documents were scattered around. Emir Gandaloyev put his father’s body into the car and drove away.
11.  Having driven for some time, he saw some Chechen police officers and told them what had happened. The policemen then reported the incident to the Achkhoy-Martan inter-district prosecutor’s office (“the inter-district prosecutor’s office”).
12.  Later the same day a doctor of the Achkhoy-Martan central district hospital examined Alaudin Gandaloyev’s body. According to the certificate issued by the doctor on 22 October 2003, there were a large open gunshot wound in the front temporal area of the skull and numerous closed gunshot wounds in the body and its extremities. The certificate stated that the death of Alaudin Gandaloyev had been caused by those wounds.
13.  On 29 September 2003 the Civil Registry Office of the Achkhoy-Martan district issued a death certificate to the effect that Alaudin Gandaloyev had died on 17 September 2003 in the village of Yandi of the Achkhoy-Martan district.
14.  In support of her account of the events the applicant submitted copies of the following documents: witness statement of Emir Gandaloyev, two statements concerning Alaudin Gandaloyev’s employment record and his salary, Alaudin Gandaloyev’s death certificate, a medical statement describing Alaudin Gandaloyev’s wounds, a character reference for Alaudin Gandaloyev and the newspaper article concerning the killing of Alaudin Gandaloyev and Viskha Badayev (see below).
15.  The Government submitted that “at about 10 o’clock on 17 September 2003 two corpses of employees of the Achkhoy-Martan forestry agency, Mr V. Kh. Badayev and Mr A. A. Gandaloyev, were discovered on the outskirt of the village of Gekhi [the name of the village was stated incorrectly] in the Achkhoy-Martan district of Chechnya. Both corpses had gunshot wounds as the signs of a violent death. It was established that this crime had been committed by three unidentified armed men in camouflage uniform and masks. The three men had emerged from the woods and approached A. Gandaloyev and V. Badayev, who were on duty patrolling the forest. The armed men had asked the foresters to produce their identity papers. After that they had fired several shots from a close distance, lethally wounding the foresters and had then disappeared into the woods.”
16.  Between 17 and 19 September 2003 the radio station “Chechnya Svobodnaya” (Чечня Свободная) broadcast an announcement concerning “the elimination of two rebel fighters, Viskha Badayev and Alaudin Gandaloyev”.
17.  On 24 September 2003 a local newspaper “Stolitsa Plus” (Столица плюс) published an information note from the Regional Executive Headquarters for Coordination of the Counter-Terrorist Operation in the Northern Caucasus (“the Headquarters”) based on the latter’s daily field report. One of the paragraphs read as follows:
“...Federal forces and law-enforcement agencies continue undertaking measures aiming at providing safety to residents of the Republic, suppression of criminal activities of illegal armed groups and those who assist them.
Machine-gun fire was opened from the woods at a unit of federal forces not far from the junction of the roads leading to the villages of Orekhovo and Stariy Achkhoy in the Achkhoy-Martan district. As a result of the return fire two rebel fighters were eliminated; their corpses were found during mopping-up of the outskirts of the forest. It was established that those eliminated had been active members of illegal armed groups: Badayev Viskha, born in 1958, and Gandaloyev Alaudin. The following items were seized at the scene: AK-74 5.45 machine-guns – 2 items, magazines for AK-74 – 4 items, F-1 [grenades] – 8 items, 5.45 cartridges – 275 items. The corpses were handed over for burial to residents of the Stariy Achkhoy village.”
(b) Information submitted by the Government
18.  The Government referred to the witness statement of the head of the Headquarters, officer Sh. According to the officer, information concerning the killing of the two “rebel fighters” on 17 September 2003 had been received from a field report on the activities of the United Group Alignment (Forces) of the Russian military forces in the Northern Caucuses for 17-18 September 2003.
19.  On 17 September 2003 the inter-district prosecutor’s office instituted an investigation into the murder of Alaudin Gandaloyev and Viskha Badayev under Article 105 § 2 of the Russian Criminal Code (aggravated murder). The case file was given number 44073.
20.  On 2 October 2003 the applicant’s other son, Muslim Gandaloyev, requested the inter-district prosecutor’s office to take the following investigative measures: to seize from the radio station a record of the announcement of Alaudin Gandaloyev’s killing; to demand that the Headquarters disclose their sources of information disseminated in the information note and prosecute those responsible for the defamation; to establish which unit of federal troops had killed the two “rebel fighters” and interrogate certain persons, including the forestry employees, as witnesses. He also requested the investigators to find the weapons and the ammunition allegedly seized at the crime scene and have them evaluated by an expert.
21.  On 5 October 2003 Muslim Gandaloyev complained to the Chechnya prosecutor’s office about the defamation of his father and requested that the Headquarters’ information note be refuted, those responsible for its dissemination be identified and prosecuted, the machine-guns allegedly seized at the crime scene be found and their evaluation be carried out by an expert. He also requested the prosecutor’s office to establish which federal military unit had been involved in the incident.
22.  On 17 October 2003 the Chechnya prosecutor’s office forwarded Muslim Gandaloyev’s letter to the inter-district prosecutor’s office ordering that it be included in the investigation file in criminal case no. 44073 and that the facts complained of be verified.
23.  On 24 October 2003 the inter-district prosecutor’s office granted the applicant the status of victim in criminal case no. 44073.
24.  On 28 October 2003 the inter-district prosecutor’s office informed Muslim Gandaloyev that an investigation into the murder of Alaudin Gandaloyev and Viskha Badayev by “three unidentified armed men wearing camouflage uniforms and masks” had been opened and that a number of investigative measures had been taken. In particular, they mentioned that requests had been sent to branches of the Russian Ministry of the Interior, the Federal Security Service (the FSB) and the military prosecutor’s office “with a view to obtaining information concerning the perpetrators of the murders of Gandaloyev and Badayev”.
25.  On 29 October 2003 the investigation in criminal case no. 44073 was transferred to the military prosecutor’s office of military unit no. 20102 (“the unit military prosecutor’s office”) in Khankala, where it was given number 34/33/0625-03. The applicant was not informed about this decision.
26.  On 15 January 2004 the applicant requested the inter-district prosecutor’s office to admit her to the criminal proceedings as a civil party and grant her permission to access the investigation file in criminal case no. 44073.
27.  On 4 February 2004 the inter-district prosecutor’s office replied to the applicant stating that the investigation into her husband’s murder had established the involvement of military servicemen in the crime. Therefore, on 29 October 2003 the investigation in criminal case no. 44073 had been transferred to the unit military prosecutor’s office.
28.  On 18 February 2004 the applicant wrote to the unit military prosecutor’s office requesting that she be admitted to the criminal proceedings as a civil party and be informed of the progress in the investigation into her husband’s murder.
29.  On 30 March 2004 the unit military prosecutor’s office examined the applicant’s request and granted it in part. The decision refused to admit the applicant to the proceedings as a civil party for the reason that she had failed to submit the necessary documents; at the same time the decision did not specify in which part the applicant’s request had been granted. On the same date the prosecutor’s office informed the applicant about its decision and noted that investigative measures were being taken to solve the crime in criminal case no. 34/33/0625-03.
30.  On 22 April 2004 the unit military prosecutor’s office transferred the investigation into the murder of A. Gandaloyev and V. Badayev back to the inter-district prosecutor’s office. The applicant was not informed of this decision.
31.  On 17 May 2004 the inter-district prosecutor’s office suspended the investigation in case no. 44073 owing to the failure to identify the perpetrators. On 18 May 2004 they informed the applicant about the decision and noted that notwithstanding the suspension of the investigation, measures were being taken to solve the crime.
32.  On 8 June 2004 the inter-district prosecutor’s office resumed the investigation in criminal case no. 44073; on 18 June 2004 it informed the applicant of this decision.
33.  On 8 July 2004 the inter-district prosecutor’s office suspended the investigation in criminal case no. 44073 owing to the failure to identify the perpetrators and informed the applicant of the decision. It also noted that investigative measures were being taken to solve the crime.
34.  On 5 August 2004 the applicant complained to the inter-district prosecutor’s office about the lack of information concerning the investigation in criminal case no. 44073 and requested to be provided with access to the investigation file. She stated that the absence of information about the investigation precluded her from appealing against the actions of the investigative authorities. In her letter the applicant also questioned the effectiveness of the criminal investigation by pointing out the excessive length of the investigation and the transfer of the criminal case file from the military prosecutor’s office back to the inter-district prosecutor’s office in spite of the involvement of representatives of federal forces in her husband’s murder.
35.  On 13 August 2004 the inter-district prosecutor’s office informed the applicant that she was not allowed to access the case file prior to completion of the investigation into her husband’s murder.
36.  On 23 November 2004 the inter-district prosecutor’s office resumed the investigation in criminal case no. 44073. It is unclear what investigative measures were taken in the investigation after the last reopening of the criminal proceedings.
37.  In December 2007 the applicant was informed about the suspension of the criminal investigation into her husband’s murder owing to the failure to identify the perpetrators. According to the applicant she has not received any information about the investigation in criminal case no. 44073 ever since.
(a) Court proceedings against the investigators
38.  On 20 August 2004 the applicant complained about the investigators’ actions to the Achkhoy-Martan District Court of Chechnya (“the District Court”) and requested that the decisions to suspend the investigation in case no. 44073 and dismiss her request for access to the case file be found unlawful, that the inter-district prosecutor’s office be obliged to resume the investigation into her husband’s murder and that she be provided with access to the investigation file.
39.  On 24 November 2004 the District Court rejected the applicant’s complaint. It stated that the refusal to provide the applicant with access to the case file had not been unlawful since under domestic law the victim of a crime had no right of access to the case file prior to the completion of the criminal investigation, and the investigation into the murder of Alaudin Gandaloyev was still in progress. As to the reopening of the investigation, the court stated that taking into consideration that on 23 November 2003 the inter-district prosecutor’s office had reopened the criminal proceedings, the applicant could participate in the investigation by lodging requests aimed at improving the effectiveness of the investigation and the taking of additional investigative steps. The court’s decision also stated as follows:
“....The interim prosecutor of the Achkhoy-Martan inter-district prosecutor’s office submitted at the hearing that...the investigation in the criminal case had collected sufficient information about the involvement of military servicemen in the crime; in this connection the investigation had been transferred to the military prosecutor’s office in accordance with the rules of jurisdiction. ...on 22 April 2004 the case had been returned [by the military prosecutor’s office] to the Achkhoy-Martan inter-district prosecutor’s office. The Achkhoy-Martan inter-district prosecutor’s office undertook all possible measures to carry out an objective and thorough investigation and solve the crime. However, as it is necessary for the investigation to verify the main theory about the involvement of military servicemen [in the crime], further investigation in the criminal case is possible only by the military prosecutor’s office. He [the prosecutor] believes that the applicant should not have complained to the court about the Achkhoy-Martan inter-district prosecutor’s office as the latter had undertaken all investigative measures prescribed by law and had obtained sufficient information about the involvement of the military servicemen [in the crime]....in accordance with the Code of Criminal Procedure the criminal case had been transferred to the military prosecutor’s office, but the latter had returned it...
... On 22 April 2004 criminal case no. 44073 was returned by the military prosecutor’s office to the Achkhoy-Martan inter-district prosecutor’s office, where after a number of investigative steps, the investigation was suspended...owing to the failure to identify the perpetrators...”
40.  The Government submitted additional information about the investigation into the murder of Alaudin Gandaloyev. However, they did not submit to the Court the witness statements, forensic and ballistic reports or a number of other documents to which they referred in their submission. The list of documents submitted by the Government is provided below (see paragraph 72 below).
41.  On 17 September 2003 the inter-district prosecutor’s office opened a criminal investigation into the murder of A. Gandaloyev and V. Badayev under Article 105 § 2 of the Code of Criminal Procedure (aggravated murder); relatives of the victims of the crime were informed about the decision on the same date.
42.  On 17 September 2003 an investigator, K., conducted the crime scene examination and the examination of the corpses. As a result, two bullets and six bullet casings were collected and included as evidence in the investigation file.
43.  On 22 September 2003 the investigators questioned an employee of the Achkhoy-Martan forestry agency, Mr S.M., who stated that in May 2003 a note with threats had been found in the agency’s building.
44.  On 22 September 2003 the investigators questioned another employee of the Achkhoy-Martan forestry agency, Mr M. D., who stated that in the middle of May 2003 he had found a dead rabbit next to the agency’s building and a note on the door containing threats against the agency’s employees and demands not to patrol the forest. The note was handed over to the agency’s administration.
45.  On 22 September 2003 the investigation collected the threat note. According to the Government, its relevant part stated “...Gandaloyev... if we see you and your people once again ... you will not return from there”; the note was included in the investigation file.
46.  On 24 September 2003 the local newspaper “Stolitsa Plus” published the Headquarters’ information report concerning the killing of two active members of illegal armed groups, Alaudin Gandaloyev and Viskha Badayev, who had supposedly opened fire on a unit of federal forces, and the seizure of weapons and ammunition from the crime scene. According to the Government, this publication provided the investigation with grounds to suspect that federal servicemen could have been involved in the murder of A. Gandaloyev and V. Badayev.
47.  On 29 September 2003 the investigation questioned witness Emir Gandaloyev who stated that his father A. Gandaloyev had worked as a forester for 40 years. At about 8 a.m. on 17 September 2003 he and his father had driven in a GAZ-2401 (Volga) car to the outskirts of the Yandi village where his father had been working with his colleague V. Badayev. The two colleagues were talking when three masked men in camouflage uniforms armed with machine-guns appeared from the woods and requested identity papers. Alaudin Gandaloyev showed them his forester’s identity document. Emir Gandaloyev was going to get his identity documents from the car when he heard a series of shots from a machine-gun and was ordered to lie on the ground. One of the men pressed a machine-gun against his head. After that the witness heard more shots. Immediately after the three men left, Emir Gandaloyev found his father dead with numerous gunshot wounds; V. Badayev was also dead. At a crossroads next to Achkhoy-Martan the witness met police officers and told them about the events. The Government did not submit a copy of the witness statement.
48.  On 24 October 2003 the applicant was granted the status of victim in criminal case no. 44073.
49.  On 29 October 2003 the investigation was transferred from the inter-district prosecutor’s office to the unit military prosecutor’s office where the case file was attributed the number 34/33-0625-03.
50.  The Government submitted that on an unspecified date the deputy head of the Temporary Operational Troops of the Ministry of the Interior in the Northern Caucasus (“the Operational Troops”) (the Government did not provide any information concerning the officer’s identity or service rank) had provided the investigation with an information statement to the effect that the newspaper’s information about the killing of the two rebel fighters A. Gandaloyev and V. Badayev had been based on a field report of federal forces and law-enforcement agencies. According to the Government, this document had stated that A. Gandaloyev and V. Badayev had opened fire at a group of officers from the Achkhoy-Martan district department of the interior (the Achkhoy-Martan ROVD), the district military commander’s office and the OMON (the special task force unit) from the Tver region; that the corpses of the two men had been discovered at the scene, that there had been information concerning their involvement in the activities of illegal armed groups and that an AKM machine-gun had been seized from the scene of the shooting.
51.  On 18 February 2004 the unit military prosecutor’s office questioned Mr K., an officer of the Chechnya Forensics Expertise Centre who stated that he had participated in the examination of the scene of the murder of A. Gandaloyev and V. Badayev and that the only items collected from the crime scene had been bullets and bullet casings.
52.  On an unspecified date prior to March 2004 the investigators conducted a forensic evaluation of Alaudin Gandaloyev’s body, which established numerous penetrating gunshot wounds to his head, chest and stomach.
53.  On 10 March 2004 the military prosecutor’s office of the United Group Alignment extended the time-limit for the investigation in criminal case no. 34/33/0625-03. The document stated that the following measures had been taken in the investigation into the murder of A. Gandaloyev and V. Badayev:
“- examination of the corpses of A. Gandaloyev and V. Badayev;
- crime scene examination;
- five ballistic evaluations;
- examined and added to the investigation file evidence relevant to the case;
- the following twelve persons questioned as witnesses...
- two forensic examinations of the corpses of A. Gandaloyev and V. Badayev;
- Kh. Badayev and L. Gandaloyeva were granted the status of victim in the criminal case and questioned;
- character references were collected for A. Gandaloyev and V. Badayev;
- examples of cartridges used by military unit no. 6844 were obtained;
- responses to information requests received [from law-enforcement agencies];
- the decision was taken to conduct an expert criminal-science evaluation;”
It also stated that it was necessary to conduct the following actions:
“- identify persons involved in the killing of A. Gandaloyev and V. Badayev;
- obtain results of the expert criminal-science evaluation;
- conduct other investigative actions aimed at completion of the criminal investigation...”
54.  On 23 March 2004 the unit military prosecutor’s office questioned the head of the Headquarters, officer Sh. According to his account, he had prepared the daily information notes based on the information provided by local law-enforcement agencies and other power structures. He stated that there had been a record in a registration log concerning the discovery of the corpses of A. Gandaloyev and V. Badayev, but no record about their killing as a result of a shooting.
55.  On 23 March 2004 the unit military prosecutor’s office questioned the head of a military unit, officer I., who had submitted that on 17 September 2003 his military unit had not conducted special operations in the Achkhoy-Martan district.
56.  On an unspecified date the head of the Headquarters of the Northern Caucasus Military Circuit provided an information statement to the effect that servicemen of the Ministry of Defence had not conducted special operations in the Achkhoy-Martan district of Chechnya on 17 September 2003.
57.  On 9 April 2004 the unit military prosecutor’s office again questioned the head of the Headquarters, officer Sh. He stated that the information note about the killing on 17 September 2003 of the two rebel fighters had been based on the field report by the Temporary Operational Troops of the Ministry of the Interior in the Northern Caucasus concerning their activities on 17-18 September 2003.
58.  On the same date the unit military prosecutor’s office refused to initiate criminal proceedings against the head of the Headquarters, officer Sh., under Article 129 of the Criminal Code (slander), owing to the lack of corpus delicti. The applicant’s family was informed of this on the same date.
59.  On 22 April 2004 the investigation into the murder of A. Gandaloyev and V. Badayev was transferred from the unit military prosecutor’s office back to the inter-district prosecutor’s office as the theory of the involvement of federal servicemen in the crime had not been confirmed by the investigation.
60.  On 27 April 2004 the inter-district prosecutor’s office questioned officer V., a senior investigator of the Sunzhenskiy district department of the interior (the Sunzhenskiy ROVD). He stated that at about 10 a.m. on 17 September 2003 their police station had received information about the discovery of the corpses of A. Gandaloyev and V. Badayev. Upon arriving at the crime scene, he had found the corpse of V. Badayev; the corpse of A. Gandaloyev had been taken away by E. Gandaloyev, who had witnessed the murder. Nothing other than bullets and bullet casings had been collected at the crime scene.
61.  On 30 April 2004 the inter-district prosecutor’s office questioned an employee of the forestry agency, Mrs L.D., who stated that she had found out about the murder of her colleagues A. Gandaloyev and V. Badayev from fellow villagers. She had no information as to who could have committed the crime. Four other employees of the forestry agency, Mrs R.B., Mr M.D., Mr A. Kh. and Mr T.U. provided the investigation with similar statements.
62.  On 17 May 2004 the inter-district prosecutor’s office suspended the investigation owing to the failure to identify the perpetrators. On 18 May 2004 the applicant was informed of this.
63.  On 8 June 2004 the inter-district prosecutor’s office resumed the investigation and informed the applicant.
64.  On 8 July 2004 the inter-district prosecutor’s office suspended the investigation owing to the failure to identify the perpetrators. The applicant was informed of this decision on the same date.
65.  On 9 May 2007 the present application was communicated to the Russian Government and a copy of the investigation file concerning the murder of the applicant’s husband was requested.
66.  On 7 August 2007 the inter-district prosecutor’s office refused to submit the investigation file in criminal case no. 44073 to the European Court of Human Rights. The document referred to the information obtained from the Prosecutor General’s office and stated that the investigation was still in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses or other participants in the criminal proceedings.
67.  According to the Government, prior to September 2007 the investigators had conducted a number of ballistic evaluations of the bullets and bullet-casings collected at the scene of the murder. According to the Chechnya Expert Evaluations Department, these samples did not match the weapons from their database; the samples were transferred for further expert evaluation to the federal bullet and shell-casing repository. The expert evaluations also established that these bullets and bullet casings were not identical to the ones used by military unit no. 6844.
68.  The Government submitted that neither the investigation in criminal case no. 44073 nor those of any law-enforcement agencies in Chechnya, including the Chechnya FSB and the Achkhoy-Martan ROVD, had obtained any information about the involvement of A. Gandaloyev and V. Badayev in the activities of illegal armed groups.
69.  The Government stated that the investigation into the murder of A. Gandaloyev and V. Badayev had been verifying the theory of the involvement of members of illegal armed groups in the crime. Two facts supported this theory: firstly, members of illegal armed groups had threatened the foresters in May 2003; secondly, the two foresters had been shot when they produced their identity documents.
70.  The Government further stated that the investigation had been suspended and resumed on a number of occasions. The last decision concerning the suspension of the criminal investigation, owing to the failure to identify the perpetrators, was taken on 30 November 2007, but the operational-search measures aimed at solving the crime were under way. The Government submitted that although these operational-search measures had failed to identify the perpetrators of the crime, the investigation had not obtained any proof of the involvement of State agents in Alaudin Gandaloyev’s murder.
71.  From the Government’s submission it follows that on 1 February 2008 the inter-district prosecutor’s office resumed the investigation in criminal case no. 44073.
72.  The Government did not submit to the Court the documents to which they referred in their submission. Despite a specific request by the Court the Government did not disclose most of the contents of criminal case no. 44073, providing only copies of the following documents:
a) Decision concerning the opening of criminal case no. 44073, dated 17 September 2003;
b) One letter informing the applicant about the opening of the criminal case, dated 17 September 2003; one letter informing her about the reopening of the investigation, dated 8 June 2004, and two letters informing her about the suspension of the investigation in criminal case no. 44073, dated 18 May 2004 and 8 July 2004.
c) Decision to grant extension of the time limits for the investigation in criminal case no. 44073, dated 10 March 2004.
d) Three investigators’ decisions to take up criminal case no. 44073;
e) Letter, dated 9 April 2004, informing the applicant about the refusal to initiate criminal proceedings against officer Sh. owing to the lack of corpus delicti;
f) Decision, dated 7 August 2007, concerning the refusal to submit the investigation file in criminal case no. 44073 to the Court.
The Government stated that the submission of further documents from the investigation file in criminal case no. 44073 would violate Article 161 of the Code of Criminal Procedure as they contained information relating to the addresses and personal data of participants in the criminal proceedings.